Citation Nr: 0406955
Decision Date: 03/17/04 Archive Date: 03/30/04
DOCKET NO. 02-13 702 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to a compensable evaluation for an anxiety
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Jessica J. Wills, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a June 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri, which denied the benefit sought on
appeal. The veteran, who had active service from June 1943
to March 1953 and from October 1955 to March 1957, appealed
that decision to BVA, and the case was referred to the Board
for appellate review.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. The veteran's anxiety disorder is not shown to be
productive of occupational and social impairment or symptoms
controlled by continuous medication.
CONCLUSION OF LAW
The criteria for a compensable evaluation for an anxiety
disorder have not been met. 38 U.S.C.A. § 1155, 5103, 5103A,
5107 (West 2002); 38 C.F.R. § 3.102, 3.159, 4.1-4.14, 4.130,
Diagnostic Code 9400 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board is required to address the
Veterans Claims Assistance Act of 2000 (VCAA), which became
law in November 2000. The VCAA provides, among other things,
that the VA shall make reasonable efforts to notify a
claimant of the relevant evidence necessary to substantiate a
claim for benefits under laws administered by the VA. The
VCAA also requires the VA to assist the claimant in obtaining
that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002);
38 C.F.R. § 3.159 (2003).
First, the VA has a duty under the VCAA to notify a claimant
and his representative of information and evidence needed to
substantiate and complete a claim. Collectively, the rating
decision as well as the Statement of the Case issued in
conjunction with the veteran's appeal have notified him of
the evidence considered, the pertinent laws and regulations,
including the schedular criteria, and the reasons why his
claim was denied. In addition, a letter dated April 2002
specifically informed the veteran of his rights and
obligations under the VCAA, including the division of
responsibilities in obtaining evidence. Under these
circumstances, the Board finds that the notification
requirements of the VCAA have been satisfied. Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002).
Second, the VA has a duty to assist the claimant in obtaining
evidence necessary to substantiate a claim. In this regard,
the veteran's service medical records have been obtained and
associated with the claims file, and he has been afforded a
VA examination in connection with his claim. The veteran and
his representative have not made the Board aware of any
additional evidence that needs to be obtained prior to
appellate review.
Based on the foregoing, the Board finds that all relevant
evidence necessary for an equitable disposition of the
veteran's appeal has been obtained. Simply put, the record
is complete regarding the claim for an increased evaluation
for an anxiety disorder and that matter is ready for
appellate review.
Background and Evidence
A September 1957 rating decision granted service connection
for an anxiety reaction and assigned a noncompensable
disability evaluation effective from March 16, 1957. That
determination was based on a review of the veteran's service
medical records as well as on the findings of a July 1957 VA
examination. A June 2002 rating decision continued the
veteran's noncompensable evaluation, which has remained in
effect until the present time.
The veteran was afforded a VA examination in May 2002 for the
purpose of evaluating his anxiety disorder. The veteran
reported having nervousness and shakiness when he ate as well
as difficulty sleeping. He had experienced problems with
insomnia for approximately 20 years, which had caused some
distress. He denied having any obsessions that kept him
awake and stated that he sometimes took Xanax to help him
fall asleep. He also indicated that he had gotten along well
with others and that he belonged to a Mason's lodge in order
to meet other people. The veteran had been married for over
53 years, and he described the relationship as a good
marriage. The veteran also related that he worked as a
painting contractor since his separation from service and
that he could almost always find a job.
At the time of the examination, the veteran reported that he
continued to do some painting work. The examiner reported
that the veteran presented as a well-nourished man and
demonstrated good grooming and hygiene. His speech was
clear, and he had a good ability to express himself. His
affect was calm, and his overall mood seemed to be within
normal limits. His orientation was appropriate, and his
thinking was spontaneous, logical, productive, and well
organized. He denied problems with preoccupation or suicidal
ideation. His relationships with others seemed good with a
medium amount of contact and a preference for being with
others rather than being alone. His self-esteem was intact.
His reasoning skills indicated the capacity for abstract
thinking with an estimated intellectual functioning level in
the average range. Although he reported becoming nervous and
having a motor tremor when he ate, the veteran denied having
any anxiety, nervousness, worries, tension, or panic. He
also denied feelings of sadness, depression, low self-esteem,
appetite disturbance, anger, or hypervigilance. His judgment
and mood control were normal. The veteran reportedly had had
chronic difficulty falling asleep nightly, which the examiner
considered to be a mild problem. The examiner further
commented that the veteran had had good social relationships,
marital functioning, occupational achievement, and range of
activities. The Axis I diagnosis was primary insomnia and a
GAF scale score of 65 was rendered. The examiner indicated
that the veteran might be in need of continued medication to
help his sleeping difficulties.
In his June 2002 Notice of Disagreement, the veteran related
that at the time of his discharge he had been given a
severance and also told that he was entitled to a 10 percent
permanent disability, which he never received. He argued
that he should get the 10 percent disability compensation
that he was given by the Navy. He also stated that it was
fortunate that he was always able to get work. He reiterated
these contentions in an August 2002 statement.
In a statement dated October 2002, the veteran's
representative noted that the June 2002 rating decision was
based upon the absence of a prescribed medication for an
anxiety disorder and argued that the veteran has provided
evidence that he was indeed taking Xanax. He also related
that this medication is indicated for management of anxiety
disorder. Finally, the veteran's representative has argued
that although an anxiety disorder was not diagnosed on VA
examination, the veteran's anxiety and insomnia should be
considered as intertwined and not mutually exclusive
disorders. As such, he argues that a compensable evaluation
is in order in this case.
Law and Analysis
The veteran contends that the current evaluation assigned for
his anxiety disorder does not accurately reflect the severity
of that disability. More specifically, he maintains that the
symptomatology associated with the disability warrants a
compensable evaluation.
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set forth in the
schedule for rating disabilities. The percentage ratings
represent as far as can practicably be determined the average
impairment in earning capacity resulting from such diseases
and injuries and the residual conditions and civilian
occupations. Generally, the degree of disabilities specified
are considered adequate to compensate for considerable loss
of working time from exacerbation or illness proportionate to
the severity of the several grades of disability. 38 U.S.C.A.
§ 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify
the various disabilities and the criteria for specific
ratings.
If two evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that
evaluation; otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7. After careful consideration of the
evidence, any reasonable doubt remaining will be resolved in
favor of the veteran. 38 C.F.R. § 4.3. While the veteran's
entire history is reviewed when making a disability
determination, 38 C.F.R. § 4.1, where service connection has
already been established, and increase in the disability
rating is at issue, it is the present level of the disability
that is of primary concern. Francisco v. Brown, 7 Vet. App.
55 (1994).
Ratings shall be based as far as practicable, upon the
average impairment of earning capacity with the additional
provision that the Secretary of Veterans Affairs shall from
time to time readjust the Schedule of Ratings in accordance
with experience. In exceptional cases where the schedular
evaluations are found to be inadequate, an extraschedular
evaluation may be assigned commensurate with the average
earning capacity impairment due exclusively to the service-
connected disability or disabilities. The governing norm in
these exceptional cases is a finding that the case presents
such an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
the application of the regular schedular standards. 38
C.F.R. § 3.321(b)(1).
The veteran's disability is evaluated under 38 C.F.R. §
4.130, Diagnostic Code 9400. Under that Diagnostic Code, a
noncompensable evaluation, the currently assigned evaluation,
is for assignment when the mental condition has been formally
diagnosed, but symptoms are not severe enough either to
interfere with occupational and social functioning or to
require continuous medication. A 10 percent evaluation is
warranted when there is occupational and social impairment
due to mild or transient symptoms which decrease work
efficiency and ability to perform occupational tasks only
during periods of significant stress, or; symptoms controlled
by continuous medication. A 30 evaluation is for assignment
when there is occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, mild memory
loss (such as forgetting names, directions, recent events).
When the evidence in this case is considered under the laws
and regulations set forth above, the Board is of the opinion
that the veteran has not established entitlement to a
compensable evaluation. The evidence does not show the
veteran to have occupational and social impairment, nor has
the veteran even contended otherwise. In this regard, the
veteran told the May 2002 VA examiner that he had almost
always been able to find a job as a painting contractor,
which the veteran reiterated in his June 2002 Notice of
Disagreement. He also indicated that he continued to do some
painting work, and the VA examiner noted that he had had good
occupational achievement. In regards to his social
functioning, the veteran told the VA examiner that he has
gotten along well with others and that he enjoyed meeting
people, as was evidenced by his membership at a Mason's
lodge. He had also maintained a good marriage for over 53
years. The examiner even commented that the veteran had had
good social relationships, marital functioning, and range of
activities. Therefore, the Board finds that the veteran's
anxiety disorder is not productive of occupational or social
impairment.
In addition to the lack of evidence establishing occupational
or social impairment, the evidence of record does not
indicate that the veteran's symptoms are controlled by
continuous medication. The veteran has never sought
treatment for his anxiety disorder, and he only told the VA
examiner that he occasionally took Xanax to help him fall
asleep. Although the examiner commented that the veteran may
be in need of continuous medication for his sleeping
difficulties, the evidence of record does not indicate that
the veteran has ever actually used continuous medication for
his symptoms related to anxiety. In fact, the VA examiner
did not diagnose the veteran as having an anxiety disorder.
Instead, he diagnosed the veteran with insomnia, which he
considered to be only a mild problem. Thus, the Board finds
that the veteran's anxiety disorder is not productive of
symptoms controlled by continuous medication.
Further, the Board acknowledges that representative's
contention in this case that the veteran's anxiety and mild
insomnia are interrelated and thus, the absence of a
diagnosis of anxiety on recent examination should not be
dispositive in this case. However, the Board must emphasize
that to the extent that there are mild or transient symptoms
associated with the veteran's service-connected anxiety
disorder, such mild or transient symptoms must not only be
present, but such symptoms must also decrease work efficiency
and ability to perform occupational tasks during periods of
significant stress resulting in occupational and social
impairment. Such interference with occupational and social
functioning simply is not shown by the record. Therefore,
the Board is of the opinion that a compensable evaluation for
the veteran's anxiety disorder is not warranted.
The Board also acknowledges the veteran's contention that he
was told at the time of his discharge that he would receive a
10 percent disability evaluation. Although the Physical
Evaluation Board (PEB) report indicated that the veteran's
anxiety reaction was considered 10 percent disabling, such a
report is not binding on VA. The Navy issued the PEB report,
and VA need only consider such a report in conjunction with
the other evidence of record. In addition, the Board notes
that it is the present level of the disability that is of
primary concern in this case. Francisco v. Brown, 7 Vet.
App. 55 (1994).
In reaching this decision the Board has considered the
provisions of 38 C.F.R. § 3.321 (b) (1). In this case,
however, there has been no showing that the
veteran's anxiety disorder has caused marked interference
with employment, necessitated frequent periods of
hospitalization, or otherwise renders impractical the
application of the regular schedular standards. In the
absence of such factors, the Board finds that the
requirements for an extra schedular evaluation under the
provisions of 38 C.F.R. § 3.321 (b) (1) have not been met.
Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown,
8 Vet. App. 218 (1995).
ORDER
Entitlement to a compensable evaluation for an anxiety
disorder is denied.
____________________________________________
S. L. KENNEDY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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